Professionals: Termination of H-1B Employees

The termination of an H-1B employee triggers several obligations and imposes burdens on both the H-1B employer and H-1B employee.

Obligations of the H-1B Employer When Terminating an H-1B Employee

First, an H-1B employer is obligated to give notice to the USCIS when an H-1B employee is terminated or voluntarily leaves the H-1B employer. USCIS regulations do not proscribe how many days the employer has to give notice. It is recommended that notice be given within a reasonable time.

Second, if an H-1B employer dismisses an H-1B employee for any reason, including for cause, before the expiration date of the H-1B petition, the H-1B employer is obligated to offer the H-1B employee sufficient funds to pay for the reasonable costs for the H-1B employee to return to his/her last place of foreign residence. This obligation does not include H-4 family members. Further, if an H-1B employee voluntarily leaves the H-1B employment or if an H-1B employee does not wish to return home, this obligation is not imposed on the H-1B employer.

The Impact of a Termination on the H-1B Employee

When an H-1B employee is terminated, he/she is placed in a precarious position. Because an H-1B employee is present in the United States to render services to the H-1B employer, once that relationship ceases, there is no legal basis for the H-1B employee to remain in the United States. There is no grace period.